Kerala High Court
Omanakuttan Pillai vs State Of Kerala on 7 December, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.805 OF 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942
CRL.A.No.805 OF 2006
AGAINST THE JUDGMENT IN SC 1574/2003 DATED 18-03-2006 OF
ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM
AGAINST THE JUDGMENT IN CP 122/2001 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, SASTHAMCOTTA
APPELLANT/ACCUSED:
OMANAKUTTAN PILLAI
S/O BHASKARAN PILLAI, THAKIDIVILA VEEDU,
VADAKKUMBHAGOM MURI,
THEKKUMBHAGOM VILLAGE,
KARUNAGAPPALLY TALUK.
BY ADV. SRI.SHABU SREEDHARAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY THE EXCISE INSPECTOR,
KARUNAGAPPALLY THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SRI.K.B.UDAYAKUMAR, SR.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.805 OF 2006 2
JUDGMENT
Dated this the 7th day of December 2020 The appellant is the accused in S.C.No.1574/2003 on the file of the Additional District and Sessions Judge (Adhoc) II, Kollam. The above case is chargesheeted by the Excise Inspector, Karunagappally Range against the appellant alleging offence punishable under Section 55(a), 8(1) and (2) of the Abkari Act.
2. The prosecution case is that on 5.2.2000 at 7.30 pm, the accused was found in possession of 3.750 litres of coloured illicit arrack in five bottles each containing 750 ml kept in a cardboard box. Hence it is alleged that the accused committed the offence.
3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P5 are marked on the side of the prosecution. MO1 to MO5 are the material objects.
4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 8(2) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine the accused is CRL.A.No.805 OF 2006 3 directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard.
6. Admittedly, the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several decisions. If a forwarding note is not marked, that is fatal to the prosecution.
7. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases.
8. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96). The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder:
"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 CRL.A.No.805 OF 2006 4 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))."
9. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused.
10. Moreover, the detecting officer has not taken any sample from the seized contraband for analysis. The court is taking sample for sending the same for analysis. The court has no business to take sample from the contraband article seized.
11. A perusal of Ext.P1 seizure mahazar, it is clear that no sample is taken by the detecting officer from the spot. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) considered this point. This Court observed that the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment is extracted hereunder :
CRL.A.No.805 OF 2006 5
"7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Any way, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the detecting officer or why he did not take sample from the 18 cans." [Emphasis supplied]
12. In the light of the above discussion, I think the appellant in this case is entitled benefit of doubt.
Hence this Criminal Appeal is allowed. The conviction and the sentence imposed on the appellant as per the judgment dated 18.3.2006 in S.C.No.1574/2003 of the Additional District and Sessions Judge (Adhoc) II, Kottam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is hereby cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab